- CASE DIGEST -
Alipio Abada v.
Abaja
G.R. No. 147145
January 31,
2005, 450 SCRA 264
FACTS: Abada executed his will in
1932. Abada died in 1940. It was asserted that the will of Abada does
not indicate that it was written in a language or dialect known to the testator
and that the will was not acknowledged before a notary public, citing Articles
804 and 806 of the New Civil Code.
ISSUE: What law shall govern the validity of the will?
HELD: Abada executed his will on
4 June 1932. Under Article 795,
the validity of a will as to its form depends upon the observance of the law in
force at the time it is made. The laws
in force at
that time are
the Civil Code
of 1889 or
the Old Civil Code, and Act No.
190 or the Code of Civil Procedure which governed the execution
of wills before
the enactment of
the New Civil
Code. The matter in dispute
in the present
case is the
attestation clause in
the will of Abada. Section 618 of the Code of Civil
Procedure, as amended by Act No. 2645 governs the form of the attestation
clause of Abada’s will.
Under the Code of Civil Procedure, the intervention of a notary is not necessary in the execution of any will. Abada’s will does not require acknowledgement before a notary public. There is also no statutory requirement to state in the will itself that the testator knew the language or dialect used in the will. This is a matter that a party may establish by proof aliunde.
The will was written in Spanish. A witness testified that Abada used
to gather Spanish-speaking people in their place. In
these gatherings, Abada and his companions would talk in the Spanish language.
This sufficiently proves that Abada speaks the Spanish language.
The will was admitted probate.
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